State court overturns conviction

The Appellate Division has tossed out the burglary and larceny convictions of a Canandaigua man, claiming the assistant district attorney prevented him from getting a fair trial.

Jessica Pierce, staff writer

The state Appellate Division has overturned the conviction of a Canandaigua man in a burglary case, ruling that he did not get a fair trial in Ontario County Court because of misconduct by the prosecutor.

In its decision, rendered Friday, the panel of judges for the Appellate Division, Fourth Judicial Department, reversed a jury’s Nov. 1, 2007, verdict convicting Kevin Morrice, 23, of second-degree burglary and third-degree grand larceny, both felonies. The judges, however, upheld the charges levied by a grand jury indictment, meaning Morrice will be entitled to a new trial.

In their decision, the judges cited various instances of misconduct by Assistant District Attorney Jeffrey Taylor during Morrice’s trial before Judge Craig Doran.

The judges said Taylor, while questioning his key witness, asked if she was “getting anything in return for (her) cooperation of telling the truth.” The young woman said she wasn’t — however, she was considered an accomplice and had received immunity in exchange for her testimony before the grand jury, the judges said.

“The prosecutor had an obligation to correct the misstatement of that witness but failed to do so,” said the decision. “ ... and he compounded his misconduct in failing to correct the misstatement by telling the jury during summation that the witness was ‘getting nothing out of having testified in this case.’”

Morrice was sentenced in early January 2008 to four years in state prison and ordered to pay back the money — $10,000 — stolen from the victims. Canandaigua police and Taylor said Morrice, who lived on Routes 5 and 20, used a key to enter the home of his best friend’s parents on Ontario Street in the city on Dec. 7, 2006.

The key he allegedly used belonged to the prosecution’s key witness — a woman who was dating his friend; she testified in his trial that she drove Morrice to a place near the home and that he returned to her vehicle a short while later carrying a safe.

The girlfriend said she then drove Morrice to a creek on Malone Road near County Road 4, where he abandoned the safe and his sneakers, Taylor said during the criminal proceedings.

The alleged victims noticed the safe missing two days after it was stolen and called police.

A key piece of evidence in the case was a taped telephone conversation between the girlfriend and Morrice. During the conversation, he seemed to hint at the crime, reminding her that she saw what he “came out” with.

Morrice’s trial attorney, Matthew Mix, argued that the conversation was in reference to a different incident. He called four witnesses to the stand, including Morrice’s mother and his then-employer who testified that he was working on a roofing job when the burglary took place.

Morrice’s appeal attorney, Gary Muldoon, argued that the audio recording should not have been allowed as evidence. The appellate judges, however, sided with Taylor, writing, “the prosecutor laid a proper foundation for the admission of the audiotape in evidence.”

In addition to misleading the jury about the key witnesses’ immunity, the judges said Taylor shouldn’t have asked a detective about Morrice’s invocation of his right to an attorney, nor should he have asked Morrice, on cross-examination, about his discussions with his attorney during a recess. He also should not have asked a defense witness about her criminal past or if her boyfriend was behind bars.

Other rulings
The Morrice case was one of several appeals from Ontario County Court that were decided Friday. Several convictions were upheld, including some handled by Assistant District Attorney Jeffrey Taylor, who prosecuted Morrice. Aside from the Morrice case, the judges overturned a second local case, the 2007 drunk-driving conviction of Daniel J. Ballman. The appeals judges agreed that Ballman’s 1999 out-of-state conviction was “improperly used to elevate his DWI offense from a misdemeanor to a felony.” The only way his prior conviction could be applied would have been if it had happened after 2006, when state law was changed to allow out-of-state drunk-driving convictions to elevate New York charges, the judges ruled.

Reached by phone Tuesday, Taylor said, “I respect the court’s decision, and will abide by it.”

“We’re ready for whatever retrial date might occur,” he added, “and we’re still confident that the defendant will be convicted again, given the proof.”

There are no sanctions levied against prosecutors accused of misconduct on appeal.

The decision was one of many handed down by the judges Friday; other convictions secured by Taylor and other prosecutors in Ontario County were affirmed.

As of Tuesday afternoon, Morrice was still being held at the medium-security Orleans Correctional Facility in Albion, Orleans County. A spokeswoman for the state Department of Correctional Services said he should be released within a few days, so long as the department receives the proper paperwork. Taylor said Morrice will likely be transferred to the Ontario County Jail to await his next court date, tentatively set for Tuesday.

Muldoon could not be reached for comment Tuesday, and a call to Morrice’s former home was not returned.

Morrice was a standout athlete when he was a student at Canandaigua Academy. He won a sectional championship for wrestling in 2004.